Marion v. Westchester Electric Railroad

Judgment and order reversed upon the law, and new trial granted, with costs to abide the event. While the evidence may be regarded as sufficient to present a question of fact for the jury, as to whether plaintiff’s intestate was visible upon the track, some distance ahead of the motorman, and as to his failure to exercise reasonable care to avoid injuring him under the circumstances, it was insufficient to justify the submission of the question of willful, reckless and wanton conduct upon the part of the motorman. (Kretik v. N. Y. Central R. R. Co., 227 N. Y. 474.) Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ., concur.